A Child (no approved secure accommodation available; deprivation of liberty)

This is an application by a local authority in relation to a boy who is now about 13 and a half. It is not necessary for the purposes of this brief judgment to relate his earlier troubled history. He earlier lived with his grandmother under a special guardianship order, but became the subject of a full care order in December 2015. There is, for the purposes of today, a document headed “Case Summary on behalf of the Local Authority” by their counsel, Mr Edward Flood, dated 13 September 2017. That is, if I may say so, a very well prepared and drafted document which summarises the whole history of this matter with clarity and sets out the legal framework with clarity and accuracy. It is available for anyone with a proper interest in this case to read.

It is clear from the harrowing contents of paragraph 6 of that document that during the last two years or so the child has displayed a desperate history and catalogue of very seriously uncontrolled behaviour, damaging both to himself and to others. As a result, he has, or had until last June, been placed in no less than six different residential settings. Each such setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe.

As the case summary makes plain, the local authority would have wished by last June to place the child in an approved secure accommodation placement. Such placements are currently very scarce and they were unable to find one. So it was that they hoped to place him in a unit which is not approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past. According to the case summary for today at paragraph 10, ‘The staff of X are appropriately trained in de-escalation and physical restraint’.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as secure accommodation orders. Such orders may be made and, indeed, frequently are made by courts, including courts composed of lay magistrates. It is not necessary to apply to the High Court for a secure accommodation order. However, as no approved secure accommodation was available, the local authority required the authorisation of a court for the inevitable deprivation of liberty of the child which would be involved.

It appears that currently such authorisation can only be given by the High Court in exercise of its inherent jurisdiction. This week I have been sitting here at the Royal Courts of Justice as the applications judge. This case is about the sixth case this week in which I have been asked to exercise the inherent jurisdiction of the High Court to authorise the deprivation of liberty of a child in similar circumstances. There are two yet further similar cases listed before me today.

Quite frankly, the High Court sitting here at the Royal Courts of Justice is not an appropriate resource for orders of this kind, and I personally have been almost drowned out by these applications this week. Further, although I have no time properly to consider this today, I am increasingly concerned that the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.

Insofar as the present case is concerned, the local authority made an application to a High Court Judge on 22 June 2017, who on that day gave to them permission to invoke the inherent jurisdiction of the High Court and authorised the deprivation of liberty of the child at X until Friday 22 September, i.e. a period of three months. The order went on to make provision for a ‘review’ here today, and provided that at this hearing the court would consider whether the child should be made a party to these proceedings and separately represented.

Section 25 of the Children Act 1989 makes quite plain at subsection (6) that a court cannot make a secure accommodation order ‘in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for the provision of representation ... and having had the opportunity to do so, he refused or failed to apply’. Pausing there, that has the effect that unless the child concerned has refused or failed to apply for Legal Aid the court simply cannot make a secure accommodation order unless the child is legally represented before the court.

In my own experience it is most unusual that a secure accommodation order could be made without the attendance of the child if of sufficient age and if he wished to attend, and without the child being properly legally represented. It is true, as Mr Flood says, that this is not an application for a secure accommodation order, but the analogy is a very close one. Indeed, the only reason why a secure accommodation order is not being applied for is because an approved secure accommodation unit is not available. It seems to me, therefore, that the statutory safeguards within section 25 should not be outflanked or sidestepped simply because a local authority have been forced, due to lack of available resources, to apply for the exercise of the inherent jurisdiction of this court rather than the statutory order.

I personally am very concerned indeed that this child has been deprived of his liberty now for three months without any guardian being appointed to act on his behalf. I cannot of course do anything with regard to the past, but I propose to order that the child now be joined as a party to these proceedings and Cafcass must forthwith allocate a guardian to act on his behalf. That guardian should, if available and practicable, be the same guardian who acted on his behalf in the care proceedings to which I have referred.

I will fix a further hearing, not in three months but in one month’s time. The guardian must file and serve an interim report shortly before that hearing. Further, in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.